Just as we are not supposed to have favourites among our children, so are we not supposed to have favourites among our judicial colleagues. But quite unabashedly I can say that in my 15 years at the Constitutional Court, justice Yvonne Mokgoro was my favourite colleague.
This is not invidious — she was the favourite of all of us. What’s more, with great assistance from her sister judge Kate O’Regan, she helped completely to reconfigure the nature of what it meant to be a judge. In the old days, to get to the top in what was a very masculinist legal profession and become a judge, you needed sharp elbows, a strong, confident voice and a combative style of argument. And in practice, if not in law, you had to be reasonably fluent in English and Afrikaans.
At the time of the elections in 1994, out of nearly 150 judges, only two were people of colour and only one was a woman (Leonor van der Heever, the daughter of a judge). When millions of black women saw Yvonne on TV taking her oath of office in Setswana, they saw themselves for the first time reflected in the top court of the land. Yvonne herself commented how extraordinary it was to find that her voice was equal to that of legal giants.
Yvonne’s style proved to be distinctive. She was completely nonconfrontational, soft-spoken, gracious to a degree and totally comfortable to defend a principle in which she believed, with soft and gentle words. Yvonne was happy to be referred to as an African feminist. It affected the way in which she listened to and heard others, her relationships with colleagues and staff at the court and the manner in which she addressed counsel.
She had great natural dignity and graciousness, a deeply empathetic heart and a delicately creative imagination. She radiated a sense of fairness and respect. And there was lots of laughter when Yvonne was around. Her experience of growing up in African society implanted in her a deep sensibility that fed directly into her understanding and interpretation of our bill of rights. This emerged in the very first case we heard, Makwanyane, which dealt with the constitutionality of capital punishment in our new democracy. In supporting its abolition, she referred to the concept of ubuntu-botho, a deep affirmation of human dignity and interdependence. This was something not taught in law schools in South Africa or abroad. It was simply something that she brought with her onto the court as part of her being, at the very heart of her sense of justice.
The implications for the development of our legal doctrine were enormous. Instead of profound principles of African culture as peripheral, she placed them at the core of the whole constitutional enterprise. With a couple of sentences and a footnote, this youngish Setswana-speaking woman of working-class background was inverting the whole civilisation paradigm, freeing democratic South Africa of barbaric practices of the colonial and apartheid era.
It is no accident that four other colleagues went on to include a reference to ubuntu in our judgments. Yvonne’s strong humanity and cultural sensibilities went beyond simply affecting her manner of being and her contribution to the development of our legal thought. It enabled her to play a major role in developing the special ambience of the environment in which we worked.
At our first meeting as newly appointed judges sitting on borrowed chairs, Arthur Chaskalson delegated various tasks to us. Ismail Mahomed was asked to draft rules of court, Laurie Ackermann to start and develop a library, Kate O’Regan to explain to us what personal computers were, Tholie Madala to attend to the question of gowns, and so on. Yvonne and I were asked to look after décor in our temporary accommodation at Braampark and were given R10,000. Over 15 years, this modest mandate resulted in the two of us becoming responsible for everything ranging from the seating of justices at court hearings to the competition for a new court building on what became known as constitution Hill and the creation of what has now become the world-renowned Constitutional Court artwork collection. It was a joy working with her. She had a good natural sense of style, great open-mindedness to artistic endeavour and a strong feeling for the way in which art and justice were intertwined.
Just weeks before the accident which led to her hospitalisation and ultimately losing her life, Yvonne and I were filmed sitting in a gallery in the Constitutional Court, discussing the significance of the artwork. The film Where Art meets Justice will be screened in South Africa later this year.
Yvonne is the best interviewee I have ever known. With seamless spontaneity, her thoughts, her ethics, her vision, her language and her bodily expression come together in the film.
We all admired, respected and loved her and will continue to remember her as a beacon of thought, humanity and beauty. Yvonne was ubuntu in action.
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